Estoppel

PROMISSORY ESTOPPEL

AIR 2009 SC Supp 1196

Para 139: In Southern Petrochemical Industries Co. Ltd. V/s. Electricity Inspector and ETIO and others, 2007 5 SCC 447, on the question of doctrine of promissory estoppel, it was held :-

"121. The doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications issued under the statutory provisions but also under the executive instructions. The appellants had undoubtedly been enjoying the benefit of (sic exemption from) payment of tax in respect of sale/consumption of electrical energy in relation to the cogenerating power plants."

Para 140: The Court further opined :

"128. In MRF Ltd. it was held that the doctrine of promissory estoppel will also apply to statutory notifications."

Para 141: As regards setting up of MPPs the principle of estoppel shall also apply. It is now a well settled principle of law that nobody should suffer for the wrong done to by a quasi-judicial body. In view of the principle analogous to 'actus curiae neminem grvabit', we are of the opinion that because of the unreasonable stand taken by APTRANSCO before the Commission, LVS Powers should not suffer. In the aforementioned situation the High Court has issued the directions.

APPROBATE AND REPROBATE

[(2010) 10 SCC 165]

Para 13: The unconditional acceptance of the terms of the package and the benefit which the appellant derived under the same will estop the appellant from challenging the recovery of the dues under the package or the process of its determination. No dispute has been raised by the appellant and rightly so in regard to the payment of outstanding licence fee or the interest due thereon. The controversy is limited to the computation of liquidated damages of Rs.8 crores out of which Rs.7.3 crores was paid by the appellant in the beginning without any objection followed by a payment of Rs.70 lakhs made on 29th May, 2001. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the Migration Package. Allowing the appellant at this stage to question the demand raised under the Migration Package would amount to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. In Ambu Nair v/S. Kelu Nair AIR 1933 PC 167 the doctrine was explained thus:

"Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well- accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith V/s. Baker (1878) LR 8 CP 350 at p. 357 `at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage'."

Para 14: View taken in the above decision has been reiterated by this Court in City Montessori School V/s. State of Uttar Pradesh and Ors. (2009) 14 SCC 253. To the same effect is the decision of this Court in New Bihar Biri Leaves Co. V/s. State of Bihar 1981 (1) SCC 537 where this Court said :

"It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton, L.J., Verschures Creameries Ltd. V/s. Hull & Netherlands Steamship Co.)"

Para 15: The decision of this Court in R.N. Goswain V/s. Yashpal Dhir AIR 1993 SC 352, brings in the doctrine of election in support of the very same conclusion in the following words :

"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: Verschures Creameries Ltd. V/s. Hull and Netherlands Steamship Co. Ltd. (1921) 2 KB 608, at p.612, Scrutton, L.J.] According to Halsbury's Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508)"

Para 16: In America Estoppel by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited.

Para 17: American Jurisprudence, 2nd Edition, Volume 28, pages 677-680 discusses `Estoppel by acceptance of benefits' in the following passage:

"Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience."

ELECTION OF REMEDY

AIR 1994 SC 2151

Para 15: The Doctrine of Election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different. To hold otherwise may lead to injustice and inconsistent results. Since, the Corporation must be held entitled and given full protection by the Court to recover its dues it cannot be bound down to adopt only one of the two remedies provided under the Act. In our opinion, the Corporation can initially take recourse to Section 31 of the Act but withdraw or abandon it at any stage and take recourse to the provisions of Section 29 of the Act, which Section deals with not only the rights but also provides a self-contained remedy to the Corporation for recovery of its dues. If the Corporation chooses to take recourse to the remedy available under Section 31 of the Act and pursues the same to the logical conclusion and obtains an order or decree, it may thereafter execute the order or decree, in the manner provided by Section 32(7) and (8) of the Act. The explanation, however, may withdraw or (sic) Act. A 'decree' under Section 31 of the Act not being a money decree or a decree for realisation of the dues of the Corporation, as held in AIR 1978 SC 1765 (1769) (supra), recourse to it cannot debar the Corporation from taking recourse to the provisions of Section 29 of the Act by not pursuing the decree or order under Section 31 of the Act, in which event the order made under Section 31 of the Act, would serve in aid of the relief available under Section 29 of the Act.

Para 16: The doctrine of election, as commonly understood, would, thus, not be attracted under the Act in view of the express phraseology used in sec. 31 of the Act, viz. "without prejudice to the provisions of Section 29 of this Act". While the Corporation cannot simultaneously pursue the two remedies, it is under no disability to take recourse to the rights and remedy available to it under Section 29 of the Act even after an order under Section 31 has been obtained but without executing it and withdrawing from those proceedings at any stage the use of the expression "without prejudice to the provisions of Section 29 of the Act" in Section 31 cannot be read to mean that the Corporation after obtaining a final order under Section 31 of the Act from a court of competent jurisdiction is denuded of its rights under Section 29 of the Act. To hold so would render the above quoted expression as redundant in Section 31 of the Act and the Courts do not lean in favour of rendering words used by the Legislature in the statutory provisions redundant. The Corporation which has the right to make the choice may make the choice initially whether to proceed under Section 29 of the Act or Section 31 of the Act, but its rights under Section 29 of the Act are not extinguished, if it decides to take recourse to the provisions of Section 31 of the Act. It can abandon the proceedings under Section 31 of the Act at any stage, including the stage of execution, if it finds it more practical, and may initiate proceedings under Section 29 of the Act.

AIR 2006 SC 577

Para 23: The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.

Para 24: In Nagubai Ammal and Others V/s. B. Shama Rao and Others, it was stated:

"It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto."

Para 25: In C. Beepathuma and others V/s. Velasari Shankaranarayana Kadambolithaya and others, it was stated:

"The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland -

"That he who accepts a benefit under a deed or Will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."

(see Maitland's lectures on Equity Lecture 18) The same principle is stated in

White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows:

"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.... That he who accepts a benefit under a deed or Will must adopt the whole contents of the instrument."

Para 26: Thomas, J. in P.R. Deshpande V/s. Maruti Balaram Haibatti stated the law, thus:

"The doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.

ESTOPPEL BY CONDUCT

AIR 2000 SC 3706

Para 20: Estoppel by conduct in modern times stands elucidated with the decisions of the English Courts in Pickard V/s. Sears, (1837) 6 Ad and EL 469 and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey V/s. Gopal Chunder Laha, (1892) 19 Ind App 203, whereas earlier Lord Esher in the case of Seton Laing Co. V/s. Lafone, (1887) 19 QBD 68 evolved three basic elements of the doctrine of Estoppel to wit:

Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment. Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an Estoppel: Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterised as misrepresentation. In this context, reference may be made to the decisions of the High Court of Australia in the case of Craine V/s. Colonial Mutual Fire Insurance Co. Ltd., (1920) 28 CLR 305, Dixon, J. in his Judgement in Grundt V/s. The Great Boulder Pty. Gold Mines Ltd., (1938) 59 CLR 641 stated that: "in measuring the detriment, or demonstrating its existence, one does not compare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the representator wishes to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the representee would be in if the representor were allowed to disavow the truth of the representation." (In this context see Spencer Bower and Turner : Estoppel by Representation 3rd Ed.). Lord Denning also in the case of Central Newbury Car Auctions Ltd. V/s. Unity Finance Ltd., (1956) 3 All ER 905 appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of 'detriment' to the effect as to whether it appears unjust or unequitable that the representator should now be allowed to resile from his representation, having regard to what the representee has done or refrained from doing in reliance on the representation, in short, the party asserting the Estoppel must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs, the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment (vide Grundts: High Court of Australia (supra)).

Para 21: Phipson on Evidence (Fourteenth Edn.) has the following to state as regards estoppels by conduct.

"Estoppels by conduct, or, as they are still sometimes called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, acceptance of an estate and that like, and whether a party had or had not concurred in an act of this sort was deemed to a matter which there could be no difficulty in ascertaining, and then the legal consequences followed. (Lyon V/s. Reed, (1844) 13 M and W 285, 309). The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows. "Where one by his words or conduct wilfully causes another to believe the existence of a certain state of things and induces him to act on that behalf so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." (Pickard V/s. Sears, (1837) 6 A and E 469, 474). And whatever a man's real intention may be, he is deemed to act wilfully "if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it. (Freeman V/s. Cooke, 1848 (2) Exch 654, 663).

Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled. Mercantile Bank V/s. Central Bank, 1938 AC 287, 304 and National Westminster Bank V/s. Barclays Bank International, 1975 QB 654. This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparatively recently.

Moorgate Mercantile Co. Ltd. V/s. Twitchings, 1977 AC 890 CHL). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations, rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time. Square V/s. Square, (1935) P. 120."

Para 22: A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status.

NO ESTOPPEL IN AVAILING  STATUTORY / CONSTITUTIONAL REMEDIES

AIR 1998 SC 2979

Para 9: It is now trite that the principle of estoppel has no application when statutory rights and liabilities are involved. It cannot impede right of appeal and particularly the constitutional remedy. The House of Lords has considered the same question in Evans V/s. Bartlam, (1937) 2 All ER 646. The House was dealing with an order of the Court of Appeal whereby Scott, L.J. approved the contention of a party to put the matter on the rule of election on the premise that the defendant knew or must be presumed to know that he had the right to apply to set the Judgement aside and by asking for and obtaining time he irrevocably elected to abide by the judgment. Lord Atkin, reversing the above view, has observed thus :

"My Lords, I do not find myself convinced by these judgments. I find nothing in the facts analogous to cases where a party, having obtained and enjoyed material benefit from a judgment, has been held precluded from attacking it while he still is in enjoyment of the benefit. I cannot bring myself to think that a judgment-debtor, who asks for and receives a stay of execution, approbates the judgment, so as to preclude him thereafter from seeking to set it aside, whether by appeal or otherwise. Nor do I find it possible to apply the doctrine of election."

Para 10: Lord Russell of Killowen while concurring with the aforesaid observations has stated thus :

"My Lords, I confess to a feeling of some be wilderment at the theory that a man (who, so long as it stands, must perforce acknowledge and bow to a Judgement of the Court regularly obtained), by seeking and obtaining a temporary suspension of its execution, thereby binds himself never to dispute its validity or its correctness, and never to seek to have it set aside or reversed. If this were right, no defeated litigant could safely ask his adversary for a stay of execution pending an appeal, for the grant of the request would end the right of appeal. The doctrine of election applies only to a man who elects with full knowledge of the facts."

Para 11: A party to a lis can be asked to give an undertaking to the Court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking no Court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior Court or even the same Court on a review the undertaking given by the party will automatically cease to operate. Merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and operative. However, it is open to such superior Court to consider whether the operation of the order or Judgement challenged before it need be stayed or suspended having regard to the fact that the concerned party has given undertaking in the lower Court to abide by the decree or order within the time fixed by that court.

Para 12: We are, therefore, in agreement with the view of Sahai and Venkatachala, JJ., that the appeal filed under Art. 136 of the Constitution by special leave cannot be dismissed as not maintainable on the mere ground that appellant has given an undertaking to the High Court on being so directed, in order to keep the High Court's order in abeyance for some time.

[1995 (Supp2) SCC 539]

Para 2: Election is a defence available affecting property and "considers that as done which ought to have been done", Halshury's Laws of England, 4th Edn., Vol. 16, para 1372. It is statutorily recognised by Section 35 of the Transfer of Property Act, 1882. It applies where a person professes to transfer property which he has no right to transfer. Similarly, on the principle that a person may not approbate and reprobate, "a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions: (1 that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2 that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent". Vide Halsbury's Laws of England, 4th Edn Vol. 16, para 1507.

Para 3: None of these principles apply to an undertaking given by a tenant for vacating the premises within specified time. It is not a transfer of property by a person who has no right to transfer. The doctrine of election cannot be applied to deprive a person of his statutory right to appeal, much less a constitutional right of invoking extraordinary jurisdiction of this court as he having undertaken to vacate the premises was precluded from exercising his right to approach higher court. It is not exercise of option between two remedies open to him but depriving him of his constitutional right which would be contrary to constitutional guarantee and against law. There is no estoppel against statute.

Para 4: Even the equitable principle of "approbate and reprobate" cannot be applied. Taking time to vacate is appealing to the court to protect him so that he may make arrangements in the meantime. At the worst the intention might be to gain time to approach the higher court. Grant of time in either case is in the discretion of the court. Its violation may amount to disobedience of the order of court and the person may be proceeded against in contempt. But no other fetter arises. Otherwise in the system prevalent the tenant may be on the road by the time he is able to approach this court. This would be rendering the tenant remediless. The equitable principle of estoppel thus cannot act inequitably against tenant.

Para 5: Remedy under Art. 136 is a constitutional right. It cannot be taken away by legislation much less by invoking principle of election or estoppel. The jurisdiction exercised by this court under Art. 136 is an extraordinary jurisdiction which empowers this court to grant leave to appeal from any judgment, decree or determination in any cause or matter passed or made by any court or tribunal. The scope of this article has been settled in numerous decisions. It is not hedged with any restrictions or any exception as is normally found in the provisions conferring jurisdiction. The principle of "approbate and reprobate" or the law of election which is the basis of the decision in R.N. Gosain case cannot, in our opinion, be applied appropriately to preclude this court from exercising its jurisdiction under Art. 136. The doctrine of election is founded on equitable principle that where a person persuades another to act in a manner to his prejudice and derives any advantage from that, then he cannot turn around and claim that he was not liable to perform his part as it was void. It applies where a vendor or a transferor of property tries to take advantage of his own wrong. This principle cannot, in our opinion, be extended to shut out or preclude a person from invoking the constitutional remedy provided to him under Art. 136. The law that there is no estoppel against statute is well settled. Here it is a remedy under the Constitution and no law can be framed much less the principle of election which can stand in the way of the appellant from invoking the constitutional jurisdiction of this Cowl. The court may, in the circumstances of the case, refuse to exercise its discretion but he cannot be precluded from invoking the jurisdiction by application of the principle of election. For these reasons we have some difficulty in agreeing with the ratio of R.N. Gosain case . We are of the opinion that papers of this appeal may be placed before Hon ble the chief justice of India for directing it to be listed before a larger bench.

ISSUE ESTOPPEL

Section 11 r/w CrPC S.300 – (2013) 9 SCC 245B,F (Issue Estoppel)

Para 18: The principle of issue-estoppel is also known as 'cause of action estoppel' and the same is different from the principle of double jeopardy or; autre fois acquit, as embodied in Section 403 Cr.P.C. This principle applies where an issue of fact has been tried by a competent court on a former occasion, and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already recorded when the accused is tried subsequently, even for a different offence, which might be permitted by Section 403(2) Cr.P.C. Thus, the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence, arising out of a transaction, a trial has taken place and the accused has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial, is prohibited by the rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in the two trials should be the same but also, the fact in issue, proved or not, as present in the earlier trial, must be identical to what is sought to be re-agitated in the subsequent trial. If the cause of action was determined to exist, i.e., judgment was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. (See: Manipur Administration, Manipur V/s. Thokchom, Bira Singh, AIR 1965 SC 87; Piara Singh V/s. State of Punjab, AIR 1969 SC 961; State of Andhra Pradesh V/s. Kokkiligada Meeraiah & Anr., AIR 1970 SC 771; Masud Khan V/s. State of U.P., AIR 1974 SC 28; Ravinder Singh V/s. State of Haryana, AIR 1975 SC 856; Kanhiya Lal Omar V/s. R.K. Trivedi & Ors., AIR 1986 SC 111; Bhanu Kumar Jain V/s. Archana Kumar & Anr., AIR 2005 SC 626; and Swamy Atmananda and Ors. V/s. Sri Ramakrishna Tapovanam and Ors., AIR 2005 SC 2392).

Para 19: While considering the issue at hand in Shiv Shankar Singh V/s. State of Bihar & Anr., (2012) 1 SCC 130, this Court, after considering its earlier judgments in Pramatha Nath Talukdar V/s. Saroj Ranjan Sarkar AIR 1962 SC 876; Jatinder Singh & Ors. V/s. Ranjit Kaur AIR 2001 SC 784; Mahesh Chand V/s. B. Janardhan Reddy & Anr., AIR 2003 SC 702; Poonam Chand Jain & Anr. V/s. Fazru AIR 2005 SC 38 held:

"It is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit."

Para 20: In Chandrapal Singh & Ors. V/s. Maharaj Singh & Anr., AIR 1982 SC 1238, this court has held that it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by enabling them to invoke the jurisdiction of criminal courts in a cheap manner. In such a fact-situation, the court must not hesitate to quash criminal proceedings.

Issue Estoppel – Cause of action estoppel – (2005) 1 SCC 787

Para 18: It is now well-settled that principles of res judicata applies in different stages of the same proceedings.

Para 19: In Y.B. Patil (supra) it was held:

"4 It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding..."

Para 20: In Vijayabai (supra), it was held:

"13. We find in the present case the tehsildar reopened the very question which finally stood concluded, viz., whether respondent 1 was or was not the tenant of the suit land. He further erroneously entered into a new premise of reopening the question of validity of the compromise which could have been in issue if at all in appeal or revision by holding that compromise was arrived at under pressure and allurement. How can this question be up for determination when this became final under this very same statute ?..."

Para 21: Yet again in Hope Plantations Ltd. (supra), this Court laid down the law in the following terms:

"17 One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the, same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice."

Para 22: It was further held:

"31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is continuous cause of action. The parties then may not be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1) review is not permissible on the ground "that the decision on a question of law on which the Judgement of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment"."

Para 29: There is a distinction between 'issue estoppels' and 'res judicata'.

Para 30: Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estoppel from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. Estopper By Accord.

Para 31: In a case of this nature, however, the doctrine of 'issue estoppel' as also 'cause of action estoppel' may arise. In Today (supra) Lord Dip lock held :

"cause of action estoppel' is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., Judgement was given on it, it is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam."

Para 32: The said dicta was followed in Barber V/s. Stafford shire Country Council. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.

2015 AIR SC 901

Para 6: The first contention advanced at the hands of the learned counsel for the appellant was based on the decision rendered by this Court in Tata Iron & Steel Co. Ltd. V/s. Union of India & Ors., (2001) 2 SCC 41, wherefrom learned counsel invited our attention to the following observations:-

"20. Estoppel by conduct in modern times stands elucidated with the decisions of the English Courts in Pickard V/s. Sears, 1837 6 Ad. & El. 469, and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey V/s. Gopal Chunder Laha, (1891-92) 19 IA 203, whereas earlier Lord Esher in the case of Seton Laing Co. V/s. Lafone, 1887 19 Q.B.D. 68, evolved three basic elements of the doctrine of Estoppel to wit:

"Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment: Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly, there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an Estoppel."

Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterized as misrepresentation. In this context, reference may be made to the decisions of the High Court of Australia in the case of Craine V/s. Colonial Mutual Fire Insurance Co. Ltd., 1920 28 C.L.R. 305. Dixon, J. in his judgment in Grundt V/s. The Great Boulder Pty. Gold Mines Pty. Ltd., 1938 59 C.L.R. 641, stated that:

"In measuring the detriment, or demonstrating its existence, one does not compare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the representor wished to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the representee would be in if the representor were allowed to disavow the truth of the representation."

(In this context see Spencer Bower and Turner: Estoppel by Representation, 3rd Ed.). Lord Denning also in the case of Central Newbury Car Auctions Ltd. V/s. Unity Finance Ltd., 1956 (3) All ER 905, appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of 'detriment' to the effect as to whether it appears unjust or unequitable that the representator should now be allowed to resile from his representation, having regard to what the representee has done or refrained from doing in reliance on the representation, in short, the party asserting the estoppel must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs, the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment, (vide Grundts: High Court of Australia (supra)).

Para 21: Phipson on Evidence (Fourteenth Edn.) has the following to state as regards estoppels by conduct.

"Estoppels by conduct, or, as they are still sometimes called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, acceptance of an estate and the like, and whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed (Lyon V/s. Reed, (1844) 13 M & W 285 (at p. 309). The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows: Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter this own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. (Pickard V/s. Sears (supra)). And whatever a man's real intention may be, he is deemed to act willfully if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it. (Freeman V/s. Cooke, 1848 (2) Exch. 654: at p. 663).

Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled (Mercantile Bank V/s. Central Bank, 1938 AC 287 at p. 304, and National Westminster Bank V/s. Barclays Bank International, 1975 Q.B. 654). This principle sits oddly with the rest of the law of estoppel, but it appears to have been reaffirmed, at least by implication, by the House of Lords comparatively recently (Moorgate Mercantile Co. Ltd. V/s. Twitchings, (1977) AC 890). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations, rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time (Square V/s. Square, 1935 P. 120)."

Para 22: A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. The contextual facts however, depict otherwise. Annexure 2 to the application form for benefit of price protection contains an undertaking to the following effect:-

"We hereby undertake to refund to EEPC Rs... the amount paid to us in full or part thereof against our application for price protection. In terms of our application dated against exports made during... In case any particular declaration/certificate furnished by us against our above referred to claims are found to be incorrect or any excess payment is determine to have been made due to oversight/wrong calculation etc. at any time. We also undertake to refund the amount within 10 days of receipt of the notice asking for the refund, failing which the amount erroneously paid or paid in excess shall be recovered from or adjusted against any other claim for export benefits by EEPC or by the licensing authorities of CCI & C."

and it is on this score it may be noted that in the event of there being a specific undertaking to refund for any amount erroneously paid or paid in excess (emphasis supplied), question of there being any estoppel in our view would not arise. In this context correspondence exchanged between the parties are rather significant. In particular letter dated 30.11.1990 from the Assistant Development Commissioner for Iron & Steel and the reply thereto dated 8.3.1991 which unmistakably record the factum of non-payment of JPC price." (emphasis is ours)

Based on the aforesaid observations it was the emphatic contention of the learned counsel for the appellant, that the rule of estoppel would come to the aid of the appellant, inasmuch as, the appellant having been consciously permitted to purchase the NSC, could not be denied the benefit of the maturity amount by asserting, that there was some irregularity in the purchase of the NSC.

Sandeep Jalan

Advocate

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